Thompson v. Connick

EDITH H. JONES, Chief Judge,

would reverse for additional reasons:

I concur in Judge Clement’s fine opinion and would also highlight the troubling tension between this unprecedented multimillion dollar judgment against a major metropolitan District Attorney’s office and the policies that underlie the shield of absolute prosecutorial immunity. The Supreme Court ought to address whether holding governmental entities liable for Section 1983 violations is consistent with absolute prosecutorial immunity from such violations. Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976).

The Supreme Court recently issued a unanimous opinion affording absolute immunity from personal- Section 1983 liability to Los Angeles County’s chief prosecutors for failure to train or supervise their staff, or failure to establish appropriate systems in regard to the advocacy function of their office. Van de Kamp v. Goldstein, — U.S. -, 129 S.Ct. 855 , 172 L.Ed.2d 706 (2009). Much as in this case, a plaintiff had been freed from custody after he discovered that important evidence had been withheld during his prosecution. The Court made a number of observations that *294 are prescient of the circumstances leading to liability in this case. These bear repeating or paraphrasing with my editorial analogies to prosecutor’s offices.

1. The “public trust” in the prosecutor’s office would suffer were he to have in mind his own potential liability when making prosecutorial decisions. Van de Kamp, 129 S.Ct. at 860 (quoting Imbler). Likewise, public confidence will erode if the public believe a prosecutorial office is motivated by the impulse to cover itself when challenged by difficult prosecutions.

2. The frequency with which criminal defendants bring suits creates real fear about public perception as well as the independence of judgment exercised by prosecutors under the constant threat of lawsuits. Van de Kamp, id.

3. Such suits, whether against the prosecutor — or the office — , “ ‘often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury.’ ” Van de Kamp, id. (quoting Imbler). See footnote 41 of Judge Clement’s opinion.

4. A prosecutor “ ‘inevitably makes many decisions that could engender color-able claims of constitutional deprivation.’ ” Van de Kamp, id. (quoting Imbler). See Judge Clement’s opinion at text adjoining footnote 53.

5. Defending against such claims, “ ‘often years after they were made, could impose unique and intolerable burdens upon a prosecutor [or office] responsible annually for hundreds of indictments and trials.’ ” Van de Kamp, id. (quoting Imbler). A crucial witness here had died, and other prosecutors could not recall this case as distinct from the hundreds or thousands they had handled.

6. The Court also said: “We do not see how ... differences in the pattern of liability among a group of prosecutors in a single office \i.e. distinguishing between the supervisors and the line prosecutors] could alleviate Imbler’s basic fear, namely, that the threat of damages liability would affect the way in which prosecutors carried out their basic court-related tasks.” Van de Kamp, 129 S.Ct. at 862 . Moreover, “... ‘it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.’ (internal citation omitted).” Id. Authorizing Section 1983 liability against the office creates the same stress on the proper functioning of the office.

7. With regard to liability for supervisory actions related to the trial process, the Court held that “a suit charging that a supervisor made a mistake directly related to a particular trial, on the one hand, and a suit charging that a supervisor trained and supervised inadequately, on the other, would seem very much alike.” Van de Kamp, 129 S.Ct. at 863 .

8. “It will often prove difficult to draw a line between general office supervision or training and specific supervision or training related to a particular case.” Van de Kamp, id. “To permit claims based upon the former is inevitably to permit the bringing of claims that include the latter.” Id. In this case, the jury was permitted to infer Section 1983 deliberate indifference and causation based on a single incident of withheld Brady evidence.

9. “[0]ne cannot easily distinguish, for immunity purposes, between claims based upon training or supervisory failures related to Giglio [at issue in Van de Kamp] and similar claims related to other constitutional matters (obligations under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), for example). And that being so, every consideration that Imbler mentions militates in favor of immunity.” Id.

10. If the threat of damages liability for a trial error could lead a trial prosecu *295 tor to take account of that risk when making trial-related decisions, so, too, could the threat of office liability for the same error affect the decisions of other prosecutors. Van de Kamp, 129 S.Ct. at 863 . So, too, could the office policies become infected with risk aversion.

11. Because “better training or supervision might prevent most, if not all, prosecutorial errors at trial, permission to bring such a suit [in Van de Kamp] would encourage claims [by other criminal defendants], in effect claiming damages for (trial-related) training or supervisory failings.” Van de Kamp, id. Such suits could, “given the complexity of the constitutional issues,” “pose substantial danger of liability even to the honest prosecutor.” Id. (quoting Imbler.) Indeed, only four convictions of the New Orleans District Attorney’s office were overturned for Brady violations in the decade preceding Thompson’s conviction (Judge Clement’s opinion at footnotes 49-50), and none involved lab reports.

12. Practical anomalies result from the coexistence of absolute prosecutorial immunity with potential Monell liability of the prosecutor’s office. As the Court observed in Van de Kamp, id., “[s]mall prosecution offices where supervisors can personally participate in all of the cases would ... remain immune from [damage suits]; but large offices, making use of more general office-wide supervision and training, would not.”

13. “Most important, the ease with which a plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging a failure of training or supervision would eviscerate Imbler.” Van de Kamp, id. This seems true whether the potential defendant is a supervisor, as in Van de Kamp , or the governmental office itself, as in this case.

The Court has not specifically excluded municipal Section 1983 liability for prosecutorial offices, nor has it ruled that they are vulnerable. Still, every reason advanced in Van de Kamp and Imbler for protecting the independence and integrity of prosecutors in trial-related actions and supervision suggests that holding a government entity liable in their stead for the same violations is simply untenable. The Court recognized, “as Chief Judge Hand pointed out [in Imbler], that sometimes such immunity deprives a plaintiff of compensation that he undoubtedly merits; but the impediments to the fair, efficient functioning of a prosecutorial office that liability could create lead us to find that Imbler must apply here.” Van de Kamp, 129 S.Ct. at 864 . Today’s judgment raises issues that will continue to plague honest prosecutors’ offices.